What Does Guardian Mean in BC? Guardianship Under the Family Law Act

The word guardian causes a lot of confusion after a separation. Many people assume it means a court-appointed stranger, or that it only matters if a parent dies. In British Columbia it is much more ordinary than that, and it is usually the starting point for every parenting question.

This article explains who is a guardian under the Family Law Act, what guardians are able to decide, and how guardianship is different from parenting time and contact. It is general information, not advice on your situation.

This article covers the law of British Columbia.

Who is a guardian in BC?

Under the Family Law Act, a guardian is a person who is a guardian under section 39 or who has been appointed under the Act. While a child's parents live together and after they separate, each parent is a guardian of the child.

That means separating does not remove your guardianship. However, an agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian.

When a parent or other person is not a guardian

There are important exceptions. A parent who has never lived with the child is not a guardian unless an exception applies: the parent is a parent under the section 30 arrangements, all guardians agree in writing that the parent is a guardian, or the parent regularly cares for the child.

A stepparent does not become a guardian only because a guardian marries them or starts a marriage-like relationship with them. A stepparent is a guardian only if a court appoints them. A person who is not a parent cannot become a guardian by agreement, because only a parent can.

• Parent who lived with the child: guardian unless an agreement or order says otherwise.
• Parent who never lived with the child: guardian only if an exception applies.
• Stepparent or other non-parent: guardian only by court appointment.

What guardians can decide

Only a guardian may have parental responsibilities and parenting time. Parental responsibilities include day-to-day care and decisions, where and with whom the child lives, education and activities, cultural and religious upbringing, health-care consent (subject to section 17 of the Infants Act), applying for passports and benefits, receiving notices and information, and starting or defending legal proceedings for the child.

Unless an agreement or order says otherwise, each guardian may exercise all parental responsibilities after consulting the other guardians, unless consulting would be unreasonable or inappropriate. Guardians can share all responsibilities or divide them up.

No particular parenting arrangement is presumed to be in a child's best interests, and the Act does not presume equal parenting time or joint or separate decision-making. When making an agreement or order about guardianship, parenting arrangements or contact, the parties and the court must consider the best interests of the child only. The factors include the child's health and emotional well-being, the child's views unless it is inappropriate to consider them, and the child's need for stability.

Guardianship, parenting time and contact

Parenting time is time a child spends with a guardian, as allocated under an agreement or order. Contact is time with a person who is not a guardian. A parent who is not a guardian can still have contact but has no parental responsibilities.

Older orders can use different words. If an earlier agreement or order gave a party custody or guardianship, that party is a guardian under the Act; if it gave only access, the party has contact. Their rights are defined by the terms of the original agreement or order.

What to do next

If you are unsure whether you are a guardian, start with your history: whether you lived with the child, any written agreements, and any court orders. A parent who is not a guardian can apply to the court under section 51 to be appointed. A person who applies may ask for a parenting order at the same time.

The court forms depend on the court. In Provincial Court, you apply for a parenting order on Form 3, Application about a family law matter. In Supreme Court, a family case starts with Form F3, Notice of Family Claim. In all Provincial Court locations, a party must complete a Parenting After Separation course before moving forward with an application, unless exempt.

• Gather any separation agreements, court orders and written guardianship agreements.
• Note whether you ever lived with the child and how often you care for them.
• Write down what you want to be able to decide for the child.
• Speak with a lawyer if guardianship is unclear or disputed.

Frequently asked questions